Recognition and Representation — The Continued Relevance of Hybrid Tribunals

Originally published on Justice in Conflict as part of the Hybrid Justice – A Justice in Conflict Symposium series.

Why does the hybrid model of international criminal justice persist? Srinivas Burra joins JiC in attempt to answer this question in the second installation of our ongoing symposium on hybrid justice. Srinivas is a Assitant Professor in the Faculty of Legal Studies, South Asian University, New Delhi.

The idea of international criminal justice gained an irreversible locus in the international legal imagination with the establishment of the permanent International Criminal Court(ICC). Despite this it continues to be subjected to criticism, often rooted in questioning the legitimacy of institutions than in evaluating legal details. This post attempts to underscore the strengths of hybrid model in subduing the criticism faced by international courts.

Criticism of the legitimacy of international criminal justice is primarily directed at the power relations involved in the international criminal trials, focusing on an argument that they target only particular States or regions like Africa. The centrality of power in international criminal justice was underlined in the criticism of victors’ justice after the Second World War too. The other legitimacy criticisms focus on the external nature of international criminal justice being pursued at the international courts and tribunals. These legitimacy issues are linked in a concrete a way to ‘who’ and ‘what form’ of international criminal justice is rendered. It has been the case that international criminal justice through ad hoc tribunals like the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR), and now the ICC are perceived and also professed as the international community’s response, with insufficient domestic participation from the state where the violations took place. Similarly, with regard to ‘what form’ they take, these institutional responses are also seen as performance by external actors as they provide little representation to the domestic actors. These issues, despite their bearing on a few matters of law and legality, are primarily concerns of a political and cultural nature. They are also linked to certain historical and economic factors like the colonial past and their continuing relevance in the present.

Opposite to internationalized courts are the conventional domestic prosecutions. Prosecuting cases involving serious crimes before the domestic courts, to avoid facing the legitimacy challenges of international courts, may lead to two inferences: First the international criminal prosecutions cannot overcome the crisis of legitimacy; second, there is no viable alternative to domestic criminal prosecutions despite their inherent limitations in respect of certain grave crimes in certain grave situations. As Frederic Megret discusses elaborately, the idea of criminal justice under international law revolves around this binary position.

Hybrid models have the potential to address some of these concerns. But what makes an international criminal justice model hybrid remains contestable. However, a core minimum can be identified as necessary for a criminal tribunal to be classified as a hybrid. This minimum should include the process of the applicable law, the substantive applicable law (a mix of domestic and international), and the personnel involved in the institutional setup (a mix of international and domestic staff). Equally significant is the location of the tribunal. Domestic involvement in the framing of the applicable law including domestic law and inclusion of the local people as prosecutors, judges and administrative staff makes it manifestly hybrid in comparison to other factors like language of the proceedings of the tribunal and active involvement of victims and local communities.

Contextualization in Global Justice

Megret underlines that a “crucial function of international criminal trials… should be to ‘represent’ the nature of the crimes they are judging, by designating and acknowledging the communities that are being affected by them”. A way to achieve this is to contextualize the crimes and their prosecution as a concern of the international community. Accordingly, the cosmopolitan character of international criminal justice can be realized only through grounding it in the processes of its realization in the global justice discourses. In this regard, Nancy Fraser’s three dimensional approach to global justice is particularly relevant. The three dimensions include: distribution, recognition, and representation. The distribution dimension deals with economic maldistribution, recognition deals with status inequality, and representation focuses on political dimensions covering issues of participation and membership. While critically evaluating the idea of justice under international law, B S Chimni convincingly argues that for a just world under law these “three kinds of legitimate claims that constitute the idea of global justice… help establish a global law of welfare in the matrix of international human rights law.”

Borrowing from this framework helps contexualise the international criminal justice project in the larger movement towards global justice and the potential for hybrid justice to meet the components of global justice. The distribution element is generally positioned beyond the criminal justice purview with exceptions involving victim compensation and reparations. In international law, this often falls under human rights remedies and sometimes has implications for state responsibility. However, the elements of recognitionand representation can be potentially addressed by the mechanisms of international criminal justice — and thus within hybrid model institutions.

The hybrid model has the capacity to address the questions of recognition. The inability of domestic legal mechanisms in post-conflict situations is often presented as one of the reasons for reliance on international criminal tribunals. Related arguments in favor of international tribunals include the lack of democracy and rule of law in the domestic context, which cast doubts on the possibility of holding fair trials for perpetrators of grave international crimes. Political and legal institutions in these post-conflict situations are always seen as afflicted with democratic deficits and abuse of the law. This attitude of suspicion by the international community almost invariably creates a counter view of mistrust and / or rejection among the sections of local community. The hybrid model can be structured to address this issue. It has the potential to prevent the domestic framework being seen as ancillary to international justice models. This is so because the hybrid model can substantively involve domestic legal frameworks by drawing its jurisdiction from domestic law as well as domestically incorporated international law. This aspect serves the important purpose of recognizing the role and significance of domestically developed legal frameworks.

Similarly, the hybrid model also has the potential to address the questions of representation by way of accommodating the participation of local personnel. This is one of the important factors that differentiate hybrid justice from other models. It prevents international justice from being seen as alien and external and provides, even only formally, for participation and the possibility of belongingness. Claims of representationas important components of global justice occupy a similar space in the discussions on international criminal justice. The hybrid model arguably provides representational legitimacy through formal domestic participation.

An additional strength of hybrid models is their inherently ad hoc and context specific nature. This gives the opportunity to design according to the specific needs. Current renewed interest in hybrid courts can be significantly attributed to their capacity to withstand the legitimacy challenge posed against other international courts. This legitimacy resilience will also have notable impact on functional capabilities and adjudicatory processes. The hybrid model needs to be assessed in the backdrop of all these factors and this is what probably makes this model perennially relevant despite the existence of the permanent international criminal court.